TWEATTORNEY GENERAX~ 

OF TEXAS 

February 26, 1974 

The Honorable Charles R. Barden, P. E. 

Executive Secretary 

Texas Air Control Board 

820 East 53rd Street 

Austin, Texas 78751 

Opinion No. H- 241 

Re: Application of Article 

6252-17a, House Bill 6, 63rd 

Leg., to files of the Texas 

Air Control Board 

Dear Mr. Barden: 

Your opinion request concerns the applicability of Article 6252-17a. 

V. T. C. S. , the Open Records Act of 1973. to “a written recommendation, 

made following an investigation, from a Regional Supervisor of the Texas. 

Air Control Board to a permit engineer regarding whether a particular 

construction permit. . . should be issued. . . . ‘I 

You ask (1) whether 8 $ 3(11) and/or 3(3) of the Open Records Act apply 

to such documents so as to except them from public inspection under the Act, 

and (2) whether th&act that no decision has been reached on whether to grant 

or deny a permit would make any difference as to the applicability of either. 

section to these documents. 

Before considering the applicability of the Open Records Act to the 

records described in your letter , we must first consider whether such 

records are made public by other legislation, for we do not believe that the 

Open Records Act of 1973 operates to repeal or nullify other legislation 

making information public. 

The activities of your board are controlled by the Texas Clean Air Act, 

Article 4477-5, V. T. C. S. Sections 1.07 and 2.13 of that Act provide: 

*. 

Section 1.07 

“Information submitted to the board relating to 

secret processes or methods of manufacture or 

p. 1118 
The Honorable Charles R. Bardcn. page 2 (H-241) 

production which is identified as confidential 

when submitted shall not be disclosed by any 

member, employee, or agent of the board. ” 

Section 2.13 

“All information documents and d&t& collected 

by the board in the performance of its duties are 

the property of the state. Subject to the limitation 

of Section 1. 07 of this Act, all records of the 

board are public records open to inspection by any 

person during regular office hours. I’ 

The language of 8 2.13 above, that “all records of the board are public 

records”, is very broad and we believe it clearly applies to the documents 

described in your opinion request regardless of whether a decision has’been 

reached on whether to grant or deny the permit. Accordin#y, it is our opinion 

that the documents described in your letter are public information without reference to the Open Records Act ani that the legislation making them public information is not repealed or effected by the Open Records Act. 

You also requested that we review Opinion No. M-957 (1971) which addressed 

itself to the question: “Doer the Texar Air Control Board or the Executive Secretary have discretion over which items and matters are to be deemed ‘confidential 

information’ and ‘public records’ as those terms areused in Sections 1.07 and 

2.13 of the Texas Clean Air Act? I’. That opinion contained an analysis of various 

types of “records” and concluded that “files on matters under investigation for 

violation dthe Texas Clean Air Act” are “evidence or potential evidence for an 

enforcement action pursuant to Section 4. 02 of the Act” and are “not open to inspection by the public. ” The recommendationa described in your present opinion 

request do not appear to be in this category and, accordingly, Opinion No. M-957 

is not pertinent to your inquiry and we are not called upon to overrule or affirm 

it. You have asked whether the distinctions made in the analysis in Opinion M-957 

are still valid and our answer’tm that we are not in a position to hypothetically 

discuss distinctions without reference to particular documents. 

p. 1119 
The Honorable Chailes R. Barden. page 3 (H-241) 

SUMMARY 

A written recommendation by a regional supervisor 

of the Texas Air Control Board to a permit engineer regarding 

whether a particular construction permit should be issued is 

a public record. 

Yours very truly, 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1120